Congressional hearing questions ocean monuments: Is the ocean “LANDS owned or controlled” by the gov?

Jonathan Wood

11 months ago

Yesterday, the House Committee on Natural Resources’ Subcommittee on Water, Power, and Oceans held a hearing on the impacts of federal marine monuments and marine sanctuaries on fishing and other industries.

The timing of this hearing was fortuitous as I’d recently filed Pacific Legal Foundation’s lawsuit challenging the creation of a marine monument in the Atlantic Ocean as beyond the Antiquities Act.

Several of the Congressmen raised the lawsuit’s chief legal argument—that the Antiquities Act expressly limits monuments to “lands owned or controlled by the Federal government—and asked why they were even talking about monuments in the ocean. Congressman Rob Bishop humorously asked how the Antiquities Act’s requirement that monument’s have the smallest footprint possible could work for ocean monuments, questioning “how do you get a footprint in water?”

One of the ironies of this case is that the same government agencies who insist that dry land is “water” for purposes of the Clean Water Act now argues that the open ocean is “land” under the Antiquities Act. If consistency is the “hobgoblin of little minds,” we must have some really big minds running these agencies because consistency is clearly not a concern to them.

The congressmen also criticized the opaque process used to designate monuments. Although most other regulatory regimes require public notice and comment and compel the government to consider and respond to citizen concerns, the Antiquities Act imposes no procedural protections whatsoever. The statute has become so well known for its ability to be abused by Presidents that the show West Wing even built an episode around it.